Carter-Scott v Restore Hous.

[*1] Carter-Scott v Restore Hous. 2009 NY Slip Op 52267(U) [25 Misc 3d 136(A)] Decided on November 5, 2009 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 5, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., PESCE and RIOS, JJ
2007-121 K C.

Esther Carter-Scott, Appellant,

against

Restore Housing a/k/a PHIPPS HOUSING a/k/a C.D.R., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered December 8, 2005. The order granted a motion by Restore Housing Development Fund Corp. and a cross motion by Phipps Housing a/k/a C.D.R., both sued herein as "Restore Housing a/k/a Phipps Housing a/k/a C.D.R.," to the extent of dismissing plaintiff's claim for damage to her television set, carpet and entertainment center.

ORDERED that the order is affirmed without costs.

In this action commenced on December 23, 2002, plaintiff asserted claims for property damage, personal injuries and fraud. After a trial on the personal injuries and fraud claims, a judgment was entered on May 15, 2003 dismissing those two claims. On a prior appeal, this court affirmed that judgment (4 Misc 3d 129[A], 2004 NY Slip Op 50680[U] [2004]). Plaintiff's property damage claim had been severed for a separate trial. Thereafter, the Civil Court granted a motion by Restore Housing Development Fund Corp. and a cross motion by Phipps Housing a/k/a C.D.R., both sued herein as "Restore Housing a/k/a Phipps Housing a/k/a C.D.R.," to the extent of dismissing plaintiff's claim for damage to her television set, carpet and entertainment center, on the grounds that the claim was time-barred and plaintiff's attorney's affirmation was insufficient to raise a triable issue of fact.

In our view, the papers submitted in support of the motion and cross motion established the movants' prima facie entitlement to summary judgment as a matter of law, thereby shifting the burden to plaintiff to come forward with proof in admissible form to establish a triable issue of fact. Plaintiff's papers, consisting solely of an affirmation of counsel, who lacked personal knowledge of the facts, were insufficient to raise a triable issue of fact (see Rue v Stokes, 191 [*2]AD2d 245 [1993]). Accordingly, the order is affirmed.

Golia, J.P., Pesce and Rios, JJ., concur.
Decision Date: November 05, 2009